Academic journal article The Review of Litigation

Asbestos Lessons: The Consequences of Asbestos Litigation

Academic journal article The Review of Litigation

Asbestos Lessons: The Consequences of Asbestos Litigation

Article excerpt

Personal injury claims arising from the use of asbestos have been a disaster for many in addition to those who were harmed by exposure to that product. A lesson to be learned from the experience is that disasters of such a scale and such complex causes have radiating consequences that neither our judicial system nor our legislatures have been able to address seasonably. Indeed, the failures call into question the utility of our "blame game" as a method of addressing the social and political issues of public health and work-related disabilities.

One consequence of the crisis has been an epidemic of broad accusations. On the one hand, asbestos claims have occasioned much adverse comment about the trial lawyers representing claimants. On the other, an equal amount of venom has been directed at corporate management for its negligence in failing to protect consumers, workers, and their families from known hazards resulting in long-delayed but enormous medical and economic harms. Some of the criticism on both sides has been earned. But responsibility lies broadly on the public and its elected representatives for their failure to respond in a timely and useful way to very serious problems confronted by thousands of businesses, millions of people, and by our judicial systems, both state and federal. The Congress of the United States is particularly deserving of a failing grade.

Virtually overlooked in the exchange of name-calling, however, has been the role of third parties sharing responsibility for the harm and receiving benefits associated with the risks to which the victims were exposed. The state and federal governments equally failed to regulate Corporate America when they could have prevented the taking of profits at excessive risk and expense to employees and consumers. Behind that governmental neglect are the American citizens and their congressmen who have failed to accept responsibility for the consequences of their disinclination to regulate business to prevent foreseeable harms to fellow citizens.

Also, almost unnoticed is the revelation that the American legal system, as we have known it, simply does not work in matters presenting issues of fact requiring consideration of scientific evidence as complex as that needed to sort out the consequences of a plaintiffs historic exposure to asbestos. This is especially so when similar but distinct issues are presented by the tens of thousands at a time. The adaptations made to deal with such issues on the scale required are not acceptable to any sound notion of due process of law. Having made this defense of the courts, it ought also to be acknowledged that the judiciary has also at times neglected duties it could have performed. To make these points, a brief history of the subject is required.

I. A BRIEF HISTORY OF ASBESTOS

A. The Advent of the Crisis: Prehistory to 1972

Asbestos is a common mineral. It was employed by ancient Greeks as "the magic mineral" shielding structures from fire because of its resistance to heat.1 Its use over thousands of years prevented many misfortunes. The substance occurs naturally in much of the world's drinking water and its fibers can be found in a wide array of foods and commercial products such as tonics and mouthwashes. In the 186Os it was first commercially used in the United States as insulation.3 In 1931, a technique was developed for mixing the mineral in cement. It came to be used in brake linings that might overheat. And it was also widely used to cover pipes used to transmit heated air or fluids.

The asbestos industry in the United States was long dominated by The Johns-Manville Corp. It mined the material and fabricated it for a wide range of uses, primarily in the construction and maritime industries. Much of its product was sold to intermediate companies for use in their products. For example, in 1880, Babcock & Wilcox began to design, construct, and sell large commercial boilers for use in power plants, factories, and ships. …

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